Equality Bill

My Lords, my right reverend friend the Bishop of Winchester has had to return to his diocese and so is not in his place. He apologises and has asked me to move this amendment, which stands in his name. The purpose of the amendment is essentially to preserve an aspect of the existing law enacted by Parliament as recently as 2004. Within the overall scheme of the Bill, the issue at stake may seem minor but it raises the possibility of the law coming into head-on collision with some religious conviction. In short, the amendment preserves the effect of an exception for Anglican clergy in England and Wales provided for in the Gender Recognition Act 2004. That exception permits, but does not require, a member of the clergy of the Church of England or the Church in Wales to decline to conduct the marriage of a person who is of an acquired gender. The Church of England does not have a settled position on gender reassignment but respects and upholds the conviction of its clergy who would not, as a matter of conscientious conviction, be able to solemnise marriages where one of the parties had an acquired gender under the Gender Recognition Act 2004. When that Act was passed, a specific provision was inserted into the Marriage Act 1949 so that a priest of the Church of England or the Church in Wales, who would otherwise be under a legal obligation to solemnise the marriages of his or her parishioners, was not obliged to solemnise the marriage of a person if he or she reasonably believed that the person’s gender was an acquired gender under the 2004 Act. That was consistent with established practice in legislation dating back to 1857, when the first legislation on judicial divorce provided that a member of the clergy did not have to solemnise the marriage of a divorced person. In 1907, provision was made so that clergy who had a conscientious objection to doing so could not be required to solemnise matrimony in the case of the marriage of a man to his deceased wife’s sister. Other examples include provision contained in the Matrimonial Causes Act 1965 in respect of the remarriage of divorced persons, and provision contained in legislation dating from 1986 and 2007 relating to marriages between persons who would previously have been within the prohibited degrees of kindred and affinity. There is, then, a consistent line here, which is that Parliament has not sought to impose statutory requirements on the clergy that are contrary to their religious convictions and obligations. Under the Bill, solemnising matrimony would amount to either the provision of a service to the public or, if not, the exercise of a public function. Without the exceptions that this amendment provides, a member of the clergy who declined to conduct a marriage because one of the parties had an acquired gender would be acting unlawfully. It will either amount to discriminating against the person by not providing the person with a service, or alternatively would infringe the prohibition on doing anything that amounts to discrimination in the exercise of a public function. We understand that the absence from the Bill of an exception for Anglican marriages is a drafting oversight rather than a deliberate policy change. This being so, we hope that the amendment can be treated as a matter of tidying up a loose end in the Bill and that the Minister will be able to accept it. Amendment 58A concentrates on the Church of England and the Church in Wales, because at the point of placing the amendment, the legal advice to the Government Equalities Office was that marriages solemnised by non-Anglican ministers in England and Wales, and religious marriages in Scotland, were not at risk of being caught by the wording in Clause 29 regarding service to the public, facilities and public function. We understand, however, that the legal advice since then has developed, with reference to the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) (No. 2) Order 2005, No. 916. Hence the amendment of the noble Baroness, Lady Gould, which is welcome. However, we also look for an assurance that the Minister is satisfied that the amendment will fully achieve what it has been designed to achieve. I beg to move. Amendment 58B Moved by